Saylor and Jaeger and Anor

[2019] FamCA 345

FAMILY COURT OF AUSTRALIA

SAYLOR & JAEGER AND ANOR [2019] FamCA 345

FAMILY LAW – PRACTICE AND PROCEDURE – Case guardian appointed on behalf of the Applicant pursuant to Part 6.3 and 6.10(1) of the Family Law Rules (2004) – Where there is no appropriate case guardian available – Where it is appropriate for a case guardian to be appointed pursuant to rule 6.11 of the Family Law Rules (2004).

Family Law Rules 2004 (Cth) rr 6.2, 6.10 (1), 6.11

APPLICANT: Mr Saylor

FIRST RESPONDENT: Mr Jaeger

SECOND RESPONDENT: Ms K Saylor

FILE NUMBER: SYC 8339 of 2015

DATE DELIVERED: 16 May 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Alstergren CJ

HEARING DATE: 16 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: WMD Law

SOLICITOR FOR THE 1^ST RESPONDENT: Diamond Conway Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT: Anne McDonald & Associates

Orders

1. The Application in a Case filed by the Second Respondent on 10 May 2019 is adjourned to Chief Justice Alstergren on 3 June 2019 at 9am in Sydney for Mention.

2. In accordance with Rule 6.10 of the Family Law Rules 2004 that a case guardian be appointed to represent the interests of Mr Saylor. .

3. Pursuant to Rule 6.11 of the Family Law Rules 2004, the court requests that the Commonwealth Attorney - General nominate in writing a person to be a case guardian to represent the interest of Mr Saylor. Within 7 days from the date of these orders, the parties do all acts and things and sign all documents necessary to cause the funds held in the Controlled Monies Account held by WMD law to applied as follows:

   4.1In payment of $31,475.13 to the Commonwealth Bank Home Loan account number … (“CBA loan”)

   4.2A payment of $3,300 to the CBA loan on or before 28 May 2019 and a further payment of $3,300 to the CBA loan on or before 28 June 2019.

   4.3In payment of $2,313.44 to Town L Council.

   4.4In payment of $790 to Sydney Water.

   4.5Three monthly instalment payments of $312.98 to the house insurance policy relating to the property at D Street, Town F as and when each instalment falls due.

AND THE COURT NOTES THAT:

(A)The court received a Minute of Proposed Orders. Order 4 above was consented to by the Applicant and Second Respondent.

(B)The Applicant and Second Respondent neither opposed nor consented to orders seeking the appointment of a case guardian for Mr Saylor.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saylor & Jaeger and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC8339/2015

Mr Saylor

Applicant

And

Mr Jaeger

First Respondent

And

Ms K Saylor
Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Applicant brought an Application in a Case dated 8 May 2019 to appoint a case guardian. The application seeks two orders and a consequential order or notation. 

2. The first order has been supported by an affidavit dated 9 May 2019 and sworn by the solicitor for the Applicant.

3. The affidavit refers to a number of letters that the Applicant’s solicitor received from medical practitioners.  They have been supplied to me by way of annexures to the affidavit.

4. In particular, in paragraph 21 of her affidavit, Ms G states:

   On 17 July 2018, I received an email from [Mr Saylor] –

   which I take to be the Applicant, [Mr Saylor] –

   …that said words to the effect of ‘I’ve now been put on antipsychotic medication as a result of hallucinations from PTSD.’

5. In paragraph 22 of that same affidavit, Ms G states:

   On 9 August 2018 I received an email from [Mr Saylor] that said words to the effect of ‘I am not well and have been at [K Hospital] since 29 July 2018, a few procedures have been done, as with ongoing assessments and tests.  I’ve had extreme problems to the point of impossible to complete basic daily tasks, reaching blood pressures of 191 over 110, severe concerns with brain-freeze, where it takes me to a conscious level without subconscious responsive ending in long psychosis periods, some seven to nine hours.’

6. Also included is a letter dated 18 October 2018 from Dr C of Town N Medical Practice. This letter indicates that the Applicant had been his patient since August 2014.

7. Dr C states:

   In March 2015 he suffered a stroke following a traumatic chiropractic manipulation of his neck.  Immediately after his stroke, his partner decided to separate from him.  This left [Mr Saylor] to manage the properties alone, which was medically detrimental but necessary to secure an income.  During those initial weeks he had two further episodes. 

8. Dr C further indicates that his recovery and rehabilitation and his ability to understand complex negotiations and legal issues facing him had been impeded by both his injury and side effects of his medication.

9. Dr C goes on to state:

   I am particularly concerned about the deterioration of [Mr Saylor’s] health since the conciliation meeting on September 5 this year, and have been seeing him weekly.  It would be in the interests of [Mr Saylor’s] health if the settlement process was expedited and an outcome acceptable to all parties could conclude swiftly.

10. Dr C also refers to ongoing psychological stress, and that an outcome would speed up his recovery. 

11. I was then referred to a further letter Professor H of K Hospital from dated 2 March 2018 indicating that she had been the Applicant’s consultant physician for 10 years and has been monitoring his medical condition and other matters. 

12. Professor H indicates that the Applicant has had to take a number of different medications to manage his complex medical history and the high risk of further difficulties if his health is in any way impaired. 

13. Professor H states that:

    I understand he is currently involved in some legal processes with regard to his property settlement and dispute with his ex-partner.  These appear to have been very drawn out and certainly have had a significant effect upon [Mr Saylor’s] physical and mental health. 

    and

    I strongly advise that everything possible should be done to reach some form of legal agreement in this matter.  If this does not happen I think there is a high risk that [Mr Saylor’s] health will be significantly and permanently impaired.  I’m happy to provide any further specific details as required to support resolution of this matter.

14. A further letter I received in support of this application is a letter from Ms J, psychologist. This letter is dated 18 March 2018 and indicates that Ms J is the psychologist working in the local area. Ms J explains that the Applicant had attended her offices for psychological services in a total of 20 sessions during the period from 26 September 2016 until 12 March 2018, with further appointments being booked in the future. Ms J indicates that the Applicant was unknown to her prior to the initial appointments, and that the Applicant sought that a letter be written and gave permission for the release of the information:

    [Mr Saylor] was referred to me via mental healthcare plan written by Dr [C], dated 25 August 2016.  Dr [C] diagnosed [Mr Saylor] as suffering from anxiety and depression.  [Mr Saylor] attended sessions stating he was seeking assistance to deal with his experiences of anxiety and depression.  [Mr Saylor] discussed his circumstances and has reported symptoms in presentation during his sessions consistent with Dr [C’s] diagnosis.  Mr Saylor’s] description and statements about other aspects of his life, his commitment to his family and friends, his respect of the rights of others, his ambitions and hopes of the future are admirable descriptions of a considerate and caring man.

15. Further, it states that:

    [Mr Saylor] is aware that his ability to work in the future is uncertain because of his health issues, and this is another factor adding to his financial stress and urgency to have his property settlement finalised.  [Mr Saylor] states that the length of time since his separation has contributed to the deterioration in his mood, and he feels emotionally vulnerable and occasionally suicidal.  Fortunately, [Mr Saylor] has no present plans for self-harm. 

    [Mr Saylor] also reports feeling disconnected with his former life, as well as not being able to work in any way that he has done so prior to his circumstances.  [Mr Saylor] also reports elevated levels of anxiety in almost all circumstances.  He finds it difficult to interact with others, feeling vulnerable and unsure of how he’s expected to act when out in the community.  In general, his sense of joy of the world is noticeably diminished.  [Mr Saylor] is fearful that these aspects will not return and improve. 

    [Mr Saylor’s] request is simple; he merely wants to have his legal rights to a fair property settlement finalised so he can begin to plan for the future.  I hope [Mr Saylor’s] request can be supported.

16. Ms J also says:

    I hope [Mr Saylor’s] level of anxiety and depression and his general mental health can be taken into consideration when this matter is considered.  He is worthy of support.

17. There is a further letter produced from Dr B of Town F Medical Centre:

    Mr [Saylor] is undertaking legal proceedings in communication with WMD Law, who have requested advice on Mr [Saylor’s] mental health and capacity for decision making.  Mr [Saylor] is a new patient to me, having been known to a previous doctor in a neighbouring city.  Accordingly, to the information at hand and information of his psychiatrist, Mr [Saylor’s] mental health could interfere with his decision making process from time to time and ultimately be a hindrance to his legal proceedings.  I would recommend a case guardian to represent his interest in the Family Court proceedings.  Mr [Saylor] is amenable to this as well. 

18. Part 6.3 of the Family Law Rules 2004 (Cth) (“the Rules”) provides for the appointment, replacement or removal of a case guardian. Rule 6.10(1) provides that:

    A person may apply for the appointment, replacement or removal of a person as a case guardian to a party, and notes that an Application in relation to a case guardian may be made by a party or a person seeking to be made the case guardian or by a person authorised to be a case guardian.

19. Rule 6.11 of the Rules provides:

    If in the opinion of the court a suitable person is not available for appointment as a case guardian of a person with a disability, the court may request that the Attorney-General nominate, in writing, a person to be a case guardian.

20. I am satisfied having regard to the evidence provided to me that the Applicant suffers from a psychiatric illness and has done so for some time.  Part of this appears to have been caused by a stroke he suffered some years ago, and part of it may be caused as a result of his significant health issues.  This may, and possibly has already, interfered with his decision making abilities, making it necessary for him to have a case guardian who will be able to provide his legal advisors with proper and reasonable instructions.  I particularly rely upon the letter of Dr B dated 30 April 2019 and the recommendation therein.

21. I have also been informed that there is not an appropriate case guardian available, and that it would be appropriate for the Attorney-General to nominate a case guardian. 

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Alstergren delivered on 16 May 2019.

Associate: 

Date:  13 June 2019